Before the rule laid down in the case of Morris v. Chicago,M., St. P. P.R. Co., 1 Wash. 2d 587, 97 P.2d 119,100 P.2d 19, may be said to have become stare decisis, I am impelled to say again that I fail to see why it is error to give an
instruction upon due care in a death case when it is not error to instruct that a person injured at a railroad crossing was presumed to have exercised due care — to have stopped, looked, and listened, Steele v. Northern Pac. R. Co., 21 Wash. 287,57 P. 820; when it is error to fail to give an instruction on the presumption of innocence in a murder trial when the homicide is admitted, State v. Tyree, 143 Wash. 313, 255 P. 382; when it is proper to instruct that the presumption of innocence attends a defendant until overcome by the evidence (State v. Pavelich,153 Wash. 379, 279 P. 1102) and guilt is proved beyond a reasonable doubt, State v. Dunn, 159 Wash. 608, 294 P. 217; when, in a fraud case, it is proper to instruct that the presumption of honesty and fair dealing must be rebutted by evidence clear, cogent, and convincing, Biel v. Tolsma,94 Wash. 104, 161 P. 1047; when it is proper, in a libel case, to instruct that the reputation of plaintiff is presumed to be good in face of positive evidence that it is bad, Luna de la Peuntev. Seattle Times Co., 186 Wash. 618, 59 P.2d 753, 105 A.L.R. 932; when it is necessary, in a case against parents for alienation of affections of their son, to instruct that it is presumed that the parents acted in good faith in advising and counselling the son concerning his domestic affairs, Cramer v.Cramer, 106 Wash. 681, 180 P. 915. In the case last cited, the court said:
"It is not enough to advise the jury simply that their belief in the good faith of the parents is sufficient to warrant a verdict in their favor. When requested, the jury should be directed how to proceed in determining their good faith or lack of it. If there is a presumption in favor of good faith carryingits companion of a burden imposed upon him who assails it — andthere is — it is important the jury should be so instructed. Theappellants had a right to a direct and positive instruction uponthis matter." (Italics mine.)
The court then quoted with approval from the case of Corneliusv. Cornelius, 233 Mo. 1, 38, 135 S.W. 65, as follows:
"``If defendant was entitled to the presumption of good faith, as he was, its existence should not have been left to be feltout and inferred by way of implication and argument by the jury, but it should have been boldly and plainly declared.'"
It seems to me that there is far less justification for instructing the jury upon the presumptions in the foregoing instances than there is in such a case as this — where the lips of the one to whom the presumption is accorded are sealed in death.
I dissent.
MAIN and MILLARD, JJ., concur with BLAKE, J.